While a steadily growing number of
working Americans report they are caring for elderly and ailing parents, the
number of employees claiming they were treated unequally because of their
caregiver status rose by nearly 400 percent in recent years. What can HR do to
ensure organizations avoid such discrimination claims?

By Kristen B. Frasch

Monday, February 10, 2014

With aging baby boomers still lingering in the
workplace, a growing number of them caring for elderly and ailing parents, and
with the federal government -- namely the U.S. Equal Opportunity Commission --
continuing to step up policing efforts against family and caregiver
responsibility discrimination, attention to this segment of employment law is
intensifying.

The latest indication of an increasing focus
on family responsibility discrimination came in the form of a well-attended
Jan. 24 webinar by Brentwood, Tenn.-based Business & Legal Resources titled
"Family and Caregiver Responsibility Discrimination: Compliance Tips for
Staying Off the EEOC's Radar." Moderator Martha J. Zackin, a partner with
Boston-based Bello Welsh, says this form of discrimination is indeed "a
growing issue," as is interest among employers in best protective
practices.

Latest figures from The Center for WorkLife
Law at the University of California Hastings College of the Law in San
Francisco show more than 40 million people, about one in every eight Americans,
are age 65 and older, and this number is projected to grow to an estimated 72
million, or one in five
Americans, by 2030.

The Center's latest poll information also
shows more than 35 percent of employees have elder-care responsibilities and
one in 10 employees have caregiving responsibilities for both children and
elderly relatives. Consider too, the Center's assessment that nearly 60 million
Americans qualify as caregivers in some capacity, and the numbers working
against employers start speaking for themselves.

As BLR's webinar announcement reads,
"that's a staggering number of people whose needs as caregivers need to be
taken into consideration in the workplace."

What's more, the number of employees claiming
they were treated unequally because of their caregiver status rose by nearly
400 percent in recent years, according to the Center. The current number of FRD
cases -- through the middle of 2013 -- in the Center's database sits at about
3,600, according to Cynthia Calvert, a senior adviser there and founder of Workforce
21C, a group that provides consulting and training to employers who want to
prevent caregiver discrimination.

"I want to make an important
distinction, though," she says. "These are cases that we know about
because there has been a court decision or some media attention about them. So,
it is not all the cases that have been filed; that number would be [even]
larger." (The hot areas right now, Calvert adds, are pregnancy
accommodation family leave for men, paternity leave in particular and elder
care.)

And just how prevalent are rules and
regulations prohibiting discrimination based on family responsibilities? Though
there is no federal law in place, the EEOC has issued a guidance and subsequent
list of best practices for employers to follow to ensure they're not running
afoul of other laws. It has also upped its rhetoric of late about its intent to
investigate employers' possible discriminatory practices under these other
laws.

As the guidance reads,
"there are circumstances in which discrimination against caregivers might
constitute unlawful disparate treatment. The purpose of this [2007] document is
to assist investigators, employees and employers in assessing whether a
particular employment decision affecting a caregiver might unlawfully
discriminate on the basis of prohibited characteristics under Title VII of the
Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990."

Indeed, says Zackin,
"caregiver responsibility
is not a protected category under federal fair-employment-practice laws. Nevertheless,
the EEOC has signaled an inclination to pursue claims for caregiver
discrimination under the umbrella of other protected categories, such as sex
and ethnicity/national origin."

Her advice for staying out of court?
"Employers that focus on employees' specific, job-related
qualifications," she says, "are better positioned to defend their
practices, as are employers that follow appropriately strong EEO policies,
investigate and act on complaints in a timely fashion, and provide appropriate
training to managers and front-line supervisors" so adverse actions aren't
taken against caregiving employees due to their requests for time off or other
accommodations.

In addition to having no specific federal law
governing caregiver discrimination, few states have statutes either. To date,
Alaska and Connecticut are the only two, though the District of Columbia
expressly prohibits FRD in employment and an executive order protects federal
workers from discrimination based on "status as a parent." Other states
have introduced bills, but none have been enacted.

Local authorities, on the other hand, have
been far more active. According to Calvert, more than 80 cities and counties
have laws prohibiting FRD, "and some allow employees to sue their
employers for uncapped damages and attorney's fees."

Some of these include:

• In Florida -- Miami-Dade County, Monroe
County, Palm Beach County, Key West and Tampa;

• In Oregon -- Benton County, Corvallis,
Eugene, Hillsboro and Portland; and

• In Pennsylvania -- Philadelphia and West
Chester.

The most recent ordinance went into effect in
San Francisco on Jan. 1, prohibiting discrimination based on "caregiver
status," which is defined as being a primary contributor to the ongoing
care of a child for whom the employee has assumed parental responsibility, a
family member with a serious health condition or a parent over the age of 65.
In San Francisco's case, aggrieved employees must pursue their claims through
the Office of Labor Standards Enforcement, "which -- beginning in 2015 --
can file a claim in court seeking unlimited compensatory damages, liquidated
damages, injunctive relief and attorney's fees," says Calvert.

Clearly, the momentum is growing.

So, too, is the sense that employers aren't
discriminating out of maliciousness, necessarily, but because of thoughts and judgments
they're not even aware they're making, Calvert says.

"Most family responsibilities
discrimination arises because of unconscious biases about caregivers," she
says. "Supervisors may assume, for example, that a mother of young
children will not be committed to her job, a father who works flexibly to care
for his children is not ambitious or that an employee who cares for his or her
sick parent will not be dependable.

"These assumptions can cause the
supervisors not to hire or promote caregivers, or to terminate them, even when
they have records of good performance," she says. "Uprooting
unconscious bias has to be a top priority for employers" through
stepped-up training and communication efforts.

"Unconscious bias is a hot topic in the
media right now in connection with advancing women and making workplaces more
inclusive," says Calvert. It now must be on the FRD radar screen as well.